Gore wins after all.

Gore wins after all.

Gore Wins After All

The news organizations that participated in the media recount of the Florida vote all seem extremely eager to conclude that George W. Bush really won the election. Three different versions of the story in the New York Times, the Wall Street Journal, and the Washington Postall lead with the assertion that the U.S. Supreme Court didn't choose the president because the recount that the court stopped would have favored Bush anyhow. This is not merely an erroneous conclusion, for reasons that Mickey Kaus, my co-obsessive on this topic, lucidly explains here. It's an erroneous conclusion that answers the wrong question.

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I tried to formulate the right question in a piece titled "Road Map to the Recount" published back in April, long before anyone knew what the media consortium would find. There I argued that the inquiry into who would have won the election absent the Supreme Court's intervention was peripheral to the issue of Bush's legitimacy. Had the Supreme Court not ruled as it did, the Florida recount might have followed a variety of scenarios. Lower court decisions might have resulted in an examination, in whole or in part, of any combination of "undervotes," "overvotes," and previously counted votes. Had the courts upheld the Dec. 12 deadline for certifying the winner, the election might well have been decided not on the basis of a recount at all but by the U.S. House of Representatives. We can't know what would have happened.

Jacob Weisberg is chairman and editor-in-chief of The Slate Group and author of The Bush Tragedy. Follow him on Twitter.

Moreover, the "what if the Supreme Court …" question is no different in its import than a bunch of other interesting "counterfactual" speculations. If you're going to ask what would have happened absent Bush v. Gore, you might as well also ask, What if the Gore team hadn't blundered, first by asking for only a partial recount of undervotes and then by continuing to ignore the overvotes? What would have happened if Katherine Harris, Florida's secretary of state, hadn't been a pathetic Bush shill? What if the Bush team had wanted a fair outcome rather than victory at any cost? These issues are all fascinating and all ultimately beside the point for the same reason the "what if" question about the Supreme Court is. They can never really be answered satisfactorily because they depend on assumptions about what lay down roads not taken. More importantly, they steer us away from the essential question that I thought the media consortium was trying to answer, namely: Who got the votes that never got counted? That one, in my view, was and is the whole ballgame.

Note that this question is different from the question of what would have happened if everyone in Florida had successfully voted the way they intended to vote. The clear answer to that question is that Gore would have won big, by about 6,000 votes (according to the consortium) if you give him back those elderly Jews for Buchanan in Palm Beach Country, by 8,000 if you also give him the victims of ballot confusion in Duval County (and by about 45,000 if you try to make a plausible adjustment for this kind of accidental overvote statewide). But that question too is beside the point, or at least ancillary to the issue of Bush's legitimacy in much the same way that the Supreme Court hypothetical is. You can't make statistical adjustment to a vote tally in an American election, no matter how much one might be warranted. Asking, Whom did the voters of Florida intend to vote for? leads you into a devastating critique of Florida's shoddy electoral system, a system that deprived Gore of victory. But try asking, What happens when you count all the legally valid votes? In that case you potentially learn something of greater immediate significance, namely who should have won the election despite systemic flaws that couldn't be set right after the fact.

There are some obvious objections to my preferred question as well. One is that you can't ever answer it, because the margin of victory in Florida fell within the statistical margin of error. My answer: Yes, the Florida election was a tie in statistical terms. But the same complaint applies to the official count that made Bush president. And just because any result would have been in some sense arbitrary, given the closeness of the election, doesn't mean that all possible outcomes were equally arbitrary. In the United States, you decide a close election according to rules. The rules in Florida provided for a recount using the standard of voter "intent." By stopping such a recount from taking place, Bush's lawyers and the U.S Supreme Court prevented the possibility of an outcome that would have been arbitrary but fair, like a coin-toss, in favor of an outcome that was arbitrary and unfair, like calling "heads" after seeing which side of the coin lands up.

Another objection to my question is that every legally valid vote would not have been counted in real-world Florida even with better intentions on everybody's part. But again, this takes the debate back into the realm of counterfactual conjecture. The whole point of the media consortium's recount exercise was that it looked at the votes outside the context in which political maneuvering and practical circumstance conspired to produce the outcome we got.

And there's one final complication: There are various possible answers to my question of who got more legally valid votes, depending on what standards of legality and validity you use. Should there have been a statewide standard for what counts as a legal vote, or a county-by-county standard? Are dangling and pregnant chad admissible? Survivors of the post-election recall these debates as so many bad dreams. But while in theory there could be multiple, contradictory answers to my question, in practice there turns out to be a single bottom line. Using eight different criteria for what constitutes a legally valid and countable vote, Gore probably would have won Florida by a hundred votes or so. Take out of the equation the 680 dubious absentee ballots that were wrongly counted, the preponderance of them presumably Bush votes, and Gore's margin widens to something slightly less negligible.

I understand the instinct to put awkward questions about the president's legitimacy aside by saying either that Bush would have won anyway or that it's all a hopeless muddle. Indeed, I was as eager as anyone for such a mollifying outcome long before Bush became a war president. For Democrats to start actively contesting the president's legitimacy at this point would be bad for the whole country. Even Al Gore hasn't stepped forward to argue that the recount supports the conclusion that he really won, for all the obvious reasons. He doesn't want to damage national solidarity. He doesn't want to look like a sore loser. But Gore doesn't look like a sore loser anymore. He now looks like a sore winner.